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Gold v. Ishak12/15/1999
FOR PUBLICATION
OPINION - FOR PUBLICATION
Sandra Gold appeals the trial court's grant of a motion for judgment on the evidence in favor of Badr A. Ishak, M.D., Board of Trustees of Porter Memorial Hospital and Thomas Kalmbach, M.D. (collectively "Medical Providers"). Gold raises three issues which we consolidate and restate as whether the trial court erred in refusing to apply the doctrine of res ipsa loquitur and in granting the Medical Providers' motion for judgment on the evidence. We reverse and remand.
In addition, the Medical Providers raise one issue on cross-appeal which we restate as whether the trial court erred in failing to grant summary judgment in their favor. We affirm.
The relevant facts follow. On January 23, 1995, seventy-eight year old Margaret Frostick was admitted to Porter Memorial Hospital. Following an evaluation of Frostick and her medical tests, she was scheduled to have a right carotid endarterectomy.
Dr. Kalmbach ordered monitored anesthesia care, a type of anesthesia commonly referred to as a "mac" be used in the procedure. The "mac" keeps a patient in a sedated state but still allows the patient to be responsive, so that her vital signs can be closely watched and oxygen can be administered. The "mac" method was chosen because Frostick was susceptible to certain complications due to having multiple systematic diseases, including diabetes and coronary artery disease. Supplemental oxygen was given to Frostick through a mask in order to prevent complications. The oxygen mask that was used came in only one size, and therefore did not provide an airtight seal.
In performing the carotid endarterectomy, Dr. Kalmbach used an electrocautery unit provided by Porter Memorial Hospital. The electrocautery unit sat on a rolling cart that was about three feet high and measured about a foot and a half wide and a foot deep. A cord runs from the machine to a device that looks like a pencil that emits sparks which the doctor uses to cauterize blood vessels on the patient. There is also another cord that attaches to a grounding pad so the current can be dispersed through the patient to make the circuit complete during the procedure.
Frostick's surgery was performed on January 24, 1995. During the surgery, Dr. Kalmbach, Dr. Ishak, Dr. Joseph Venditti, Jr. and Porter Memorial Hospital employees Grace Dytrt, a nurse, and Barbara Fugate, a surgical technologist, were present. Dr. Kalmbach was standing on Frostick's right side and Fugate was on Frostick's left side. Dr. Ishak was standing at the head of the bed and Dytrt was at the foot of the bed.
The following events occurred in the operating room. The circulating nurse, who was employed by Porter Memorial Hospital, used a skin preparation on Frostick called PhisoHex. Dr. Kalmbach placed towels on Frostick's face, and then, with the assistance of a circulating nurse, placed drapes around her that separated the electrocautery unit from the oxygen mask. The drapes were placed in such a manner that Dr. Kalmbach could not see Frostick's face or the oxygen mask from where he stood during the surgery. Dr. Ishak, the anesthesiologist, who was sitting at the head of the table, was the only person that could see Frostick's face.
During the procedure, a "popping" sound came from the electrocautery unit used by Dr. Kalmbach. Record, p. 360. Dr. Venditti then checked the settings on the unit. Dr. Kalmbach continued the procedure because everything appeared fine. A second "popping" sound was heard and Frostick began squirming under the towels and became very agitated. Record, p. 360. Fugate testified that she saw an unusually large spark. At that
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